Boerne and Treaty Power

[Lash, Kurt]

Michael McConnell asks whether I think the First Amendment substantively
changed at the same time that it was "incorporated" against the states as
part of the privileges or immunities clause (or due process, if you are
so disposed) of the Fourteenth Amendment.  He also wonders how the
Fourteenth Amendment affects the constitutionality of the "Lash Tripoli
Treaty."

I do think the 14th A changed the substance of the religion clauses (and
the 10th A).  The establishment clause--which had originally meant "state
establishments are protected"--was reconfigured in 1868 to mean
"religious establishments--wherever they occur-- violate a constitutional
liberty."  This is quite a change.  You haven't just "applied" the clause
against the states, you have altered the original clause's purpose and
effect.

As applied against the treaty power: the original clause would prohibit
treaties mandating free exercise in the states because that would
contradict one of the core purposes of the original establishment clause.
 Indeed, incorporation of the establishment clause against the states is
not logically possible unless the people stopped viewing the
establishment clause as a "state's rights" provision, and started viewing
it as a "fundamental liberty" provision.  That happened as a
constitutional matter (if it happened at all) with the passage of the
Fourteenth Amendment.

Thus, whether the establishment clause bars Congress from mandating free
exercise in the states (whether by treaty or by statute) depends upon
whether the establishment clause was transformed with the passage of the
Fourteenth Amendment.  Maybe it wasn't.  Maybe the treaty power cannot be
used against the states in this way even today.  But if it can, it can
only be because something rather dramatic happened to the establishment
clause (and, I would maintain, the free exercise clause too) since the
time of the Founding.

Kurt Lash (Loyola Law School, LA)